Feinman_Torts_Fall_2010.docx
TORT LAW AIMS
1. Moral Responsibility or corrective justice
a. The behavior of the defendant is usually morally wrong, or at least negligent, and liability serves as punishment for their wrongful action
Strict liability can be difficult to argue under this doctrine
2. Social Utility or Social Policy
a. As a society, we want to [dis]encourage acts that allow our society to be productive and healthy
3. Compensation/Risk Distribution/Loss Spreading
a. This doctrine can argue for strict liability, in a business sense. If the business is strictly liable it can recoup its losses through the price of the products, and the burden is shared equally among the consumers.
4. Deterrence/Incentives
a. Potential defendants may refrain from certain activities to avoid liability
5. Economic Analysis
a. The law wants to protect the ability of business to invest, and people to take calculated risks in order to enrich the society. So this theory attempts to balance personal injuries with the increased enrichment of society by taking the calculated risks
6. Process Values
a. Values we attach to the legal process itself; essentially what we the system to operate smoothly and fairly for everyone
INTENTIONAL TORTS
BATTERY
Elements
1. Intent/purpose/substantial certainty to cause harmful or offensive contact
a. Fault Required
i. With no fault, there is no case for battery (some strict liability jurisdictions do exist)
a. Policy: corrective justice- if you’re without fault you shouldn’t be punished the same as someone who is with fault.
McAfoos v. VanCamp (kid on the tricycle).
b. Dual Intent vs. Single Intent
· A minority of jurisdictions have a “single intent” rule where: “only a voluntary action that causes harmful or offensive contact is required
· The majority of jurisdictions require “dual intent” where: there is
intent to cause harmful or offensive contact
and that contact directly or indirectly results
c. Transferred Intent Doctrine
i. If a defendant is intending to inflict injury on one person but instead accidently hits someone else, the intent to cause harm is transferred to the injured party.
Policy: still employs the deterrence argument.
d. Substantial Certainty
i. If the defendant knows with substantial certainty that his actions will cause harm, even if the intent to cause harm is missing
Policy: still acceptable to tort law; this protects against the same type of invasion into a person’s autonomy
e. Mentally Handicapped
i. Under the dual intent rule, it is harder for these people to be found liable for battery but does not exempt the insane. (White v. Muniz old person punching orderly)
Needs to appreciate the offensiveness of the conduct.
f. Children
i. General Rule: most states children can be liable for torts so long as all elements are proven, including intent.
ii. Young Children: in some states, it is assumed that young children are “conclusively presumed to be incapable of harmful intent.” In a few states they are presumed not to be able to commit a tort at all. (rule of 7s tends to dominate this)
2. Harmful or offensive contact occurs
a. Offensive contact is defined as: contact that offends a reasonable sense of personal dignity
e.g.: established in Synder v. Turk (doctor pulling nurse towards hole)
i. Unusual Sensitivity
1. What is offensive is determined by the reasonable sense of personal dignity of the person being infringed upon.
a. When informed about the delicate sensibilities and this is violated it will result in offensive contact; (Cohen v. Smith; naked woman in hospital touched by male after requested not to be)
ASSAULT
Elements
1. Intent to cause harmful or offensive contact or imminent apprehension of such contact.
a. The intent is like a battery: it can be the express purpose or there can be substantial certainty
2. Contact causes imminent apprehension
a. Damages are for mental trauma and distress
i. Fear is not required though.
ii. Real apprehension-unseen threat is not enough
False Imprisonment
Elements
1. Intent to confine
2. Confinement within boundaries fixed by the actor
a. Threats of physical force can suffice
i. Can be implicit as well as explicit
1. Can be based on a false assertion of legal authority to confine
3. Victim is either conscious of the confinement or harmed by it.
a. If Victim is for example sleeping, this doesn’t count.
b. Shopkeepers privilege – statutes in many states allowing merchants to detain suspected shoplifters, with reasonable cause and reasonably
DEFESNES
1. Consent
a. Actual Consent- consent given by the party who is has the contact against them.
i. Scope of Consent
1. If a certain stipulation is given,
ally not considered, normal person’s reasonable standard of care. [General orthodoxy is that neither insanity or mental deficiency relieves the actor of liability; the conduct must conform to the general standard of care of a reasonable person under similar circumstances]
i. Policy:
1. Allocates losses between two innocent parties to the one who caused or occasioned the loss (loss spreading/fairness)
2. Provides incentives for those responsible for people with disabilities to prevent harm and restrain those who are potentially dangerous
3. Removed inducements for tortfeasors to fake mental illness
4. Avoids the difficult task of assessing the actors disability (process value here)
5. Forces persons with disabilities to pay for the damage they cause if they are “to live in the world” (if there are doubts that this person should be interacting with other innocent parties.
ii. However, in some cases, mental health patients will not owe a duty to their institutional care taker, the care taker is the one with the duty
d. Children: Among jurisdictions, there are different approaches to determining the standard of care.
i. Traditionally: Rule of 7’s, although this is hardly used anymore
ii. General standard of Care: reasonable standard of care, for a child of that age, intelligence, maturity, training, and experience.
1. Different from the reasonably prudent person standard, individual characteristics are counted.
a. Rationale: children are still developing; we want them to be children and not hold them to the higher standard;
i. Corrective justice: can’t expect a child to be held to the same standard as an adult.
iii. Held to adult standard when they are engaging in activities that are adult activities/. (Majority Rule) (Robinson; snowmobile case)
1. Robinson includes the stipulation about dangerous, instead of adult activities.
e. Common Law Duty
i. The court can make hard and fast rules of law about certain standards of conduct. (Marshall; stop within range of lights.
